TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 62721-1

VICE PRESIDENT WATSON

AM2011/38

s.158 - Application to vary or revoke a modern award

Application by Falcan Pty Ltd
(AM2011/38)
Children's Services Award 2010


[MA000120 Print PR991088]]




Sydney

10.01AM, TUESDAY, 6 SEPTEMBER 2011

PN1

THE VICE PRESIDENT: Can I have the appearances please?

PN2

MR D. MORPHETT: Please the commission, my name is Morphett, initial D, appearing on behalf of the applicant.

PN3

THE VICE PRESIDENT: Thank you, Mr Morphett.

PN4

MR M. VANCE: Please the tribunal, Vance, initial M for United Voice.

PN5

THE VICE PRESIDENT: Thank you, Mr Vance. Yes, Mr Morphett.

PN6

MR MORPHETT: Thank you, Vice President. I might start at the back and come forward to try and explain the situation and try and read you through. Do you have a colour copy of the - - -

PN7

THE VICE PRESIDENT: Mine's not in colour I'm afraid.

PN8

MR MORPHETT: All right. I have brought some colour ones because it was my simple attempt to try and make it a little bit more easy to dissect one part from another. The issue that I bring to the commission today is regarding the application of A.3.7 of the award which was a provision that as far as I can gather was inserted by consent late in the hearing of the matter to modernise the existing child care awards. There was - it grew from a submission that was put in by the LHMU on 20 October 2009 in those proceedings, but in going back through the transcript I couldn't find any reference to how that matter had been dealt with, and there didn't seem to be anything from any of the parties listed that had - that could demonstrate the impact, I guess, of this particular provision had been detailed in any way to the commission at that time.

PN9

So I went back through the modern award unit in Melbourne and went to them to see if maybe there's something that I missed, questioning my own research capacities and they weren't able to provide me with any indicators as to any particular part of the proceedings where it had been dealt with. So the document that I've provided you with, this list does a direct comparison, this is table A which is listed in the top left-hand corner, dose a comparison between the transition whereby if you look down - the column on the left-hand side lists the old classifications under the old miscellaneous award as it applied to New South Wales and the columns next to that in blue is the correlating classifications within the modern award. We then have in the green column is the transitional amount, and that would be the amount of difference between each award.

PN10

In some of the classifications that went backwards, obviously, because in some of the classifications the rate of pay was higher in the modern award than it was in the New South Wales award and vice versa. Some of the classifications as you'll note from the red highlighting in the left, there was either no previous classification in New South Wales or it was a new classification brought in into the - it was - pardon me. I withdraw that. It was an existing classification under the award that formed the model to create the modern award, but it didn't exist previously in the miscellaneous award in NSW. So next to that what I've done is a comparison starting on 1/7/2010 and moving forward year by year to indicate a comparison between the first column, being the modern award rates of pay, then next to that if we were simply applying a standard transitional provision as per A.2 and A.3 and the column next to that is - brings into play A.3.7 so that you can see basically the three different scenarios side by side.

PN11

So what I've included on 1/7/2010 was the $26 per week increase, 1/7/2011, the 3.4 per cent increase in the next group, and then the following groups, just for the purpose of demonstration, I've just included - I've just calculated it based on 3.4 per cent. The nub of the matter is where we get to the conclusion in 2014. For example, if I take the level 3.1 in the modern award and you project that across and you end up - and the 3.1 provision I used because that was the classification identified as the C10 equivalent in the 2004, 2006 work value. In Victoria that was used virtually around Australia. We end up with a differential between the modern award rate by 2014 and the New South Wales transitional rate of pay of just over $3000 a year, being the New South Wales rate will be $3200 higher.

PN12

Now, the question that - now this also carries on, like, for example for the level 3.4 which was the C5 equivalent as determined in the work value. That, because it was the rate of pay under the New South Wales award was actually lower than the modern award rate, does transition up. So we don't have any issues with that, but then as we go up through the steps on the 4.1, 4.2, 4.3, those amounts start to become out of kilter again. The effect of A.3.7 is it effectively quarantines the rates of pay in New South Wales so that the existing rate of pay under - that existed prior to the modern award, those rates of pay that were higher than the modern award rates at the end of the translation period would be added onto - the national wage increases would be added onto it. So we end up being out of step by the time we get to 2014 to quite a significant extent.

PN13

THE VICE PRESIDENT: Why doesn't it also (indistinct) rates in Western Australia and Tasmania?

PN14

MR MORPHETT: Okay. There's another thing that comes into play which is the national quality framework which also comes into play in 2014. There's two aspects to the national quality framework in child care. One is the early learning framework which is educational side and the other is the licensing, staffing, operational, the mechanical end, if you like, of child care. The reason why I didn't include those issues in this application was that by 2014 a childcare centre anywhere in Australia, all of its staff must either be qualified, which is level 4 up, which is a diploma qualified person, or a certificate III qualified or be in training to achieve those qualifications. So it's a subsequent - the subsequent impact of that is that by 2014 effectively anybody who is below level 3 would be unemployable, they'd be supernumerary in a child care environment because they don't have a certificate III or they're not in training.

PN15

So the impact in Tasmania will be negligible because those rates won't actually ever come into play. The same with the two rates of pay, the E classifications in Western Australia, they are neither a full diploma or a certificate III. Unless those E class employees do training to bridge themselves into the diploma or the certificate III, they too will be effectively supernumerary by the time we get to 2.14. The only reason why I'm making this application based on New South Wales is because New South Wales covers the entire award, so all of the rates of pay in the New South Wales award have been quarantined, effectively. Now, this is further stretched, I guess, if you' then look at the application of A.3.8 which is the 2B awards.

PN16

There's another - I haven't made a submission about this in terms of table B, and you'll note that there's actually a difference between by the time we project it - sorry, did you have a copy of that? There's actually a difference in the rates of pay to the extent that a - that if you're a single employer employing - you know, if it's David Morphett running my own David Morphett child care centre, my rates of pay for my staff will end up actually being higher than the rates of pay if I was a company, which again brings into question, you know, why such a situation should exist.

PN17

THE VICE PRESIDENT: Sorry, what's the difference between this document and the one you handed up before?

PN18

MR MORPHETT: Right. The B document - in the top left-hand corner it should be table B and table A.

PN19

THE VICE PRESIDENT: I've got two table Bs.

PN20

MR MORPHETT: You've got two table Bs? So the A table applies to companies. It's the rates that would apply to companies. The B table there's a slight correction there, and it's only because they've moved the headers across as the firs heading says the $26 per week increase, and that of course didn't apply for the 2B employers. That was actually 3.4 per cent. You'll see that the difference ends up being significant. It's not substantial, but it ends up being a difference and I have a number of my - in New South Wales and particularly in Sydney I have 132 child care centres that I try and assist. Of that 132 there's only three of them that are actually 2B employers. But the question they ask is why should they have to pay a higher rate of pay than a company to employ people to do the same work at the same time?

PN21

Now, the - I guess where this I guess comes to a sort of pretty muddy conclusion is that the - we still have the difficulty that by 2014 there will - the provision will kick into play which will push the transitional provisions out of the award. Notionally everybody in Australia will be on the same rate of pay, which they certainly will except in New South Wales because you'll still have effectively two transitional rates of pay. Now, if we go through to that extent, and certainly some of my clients are concerned that if we go all the way through to that point and then start trying to take money off people, that it's going to have a significant impact on the ongoing employment.

PN22

The whole purpose that they understood from the beginning and the intention of the transitional process was to try and glide everybody through to the same point without anybody suffering any significant financial loss, and certainly there's provisions available for take home pay orders et cetera. But the bottom line is that we get to a point where we're still going to have these New South Wales rates of pay, people are still going to be on those rates of pay and then what do we do then? Because certainly if we start not flowing on wage increases in 2014, it's going to have a significant effect. Although that will be the right of the employers to do that, there's, I think - well, certainly all the people I deal with take a more pragmatic a view that we should try and extend that. Please the commission.

PN23

THE VICE PRESIDENT: Thank you, Mr Morphett. Mr Vance?

PN24

MR VANCE: Your Honour, the union's primary position is that these transitional matters are on the public record, they were determined by the full bench and they shouldn't be disturbed. There's nothing in Mr Morphett's submission, in our view that enlivens either section 157 or 15A. The appropriate time to raise the type of issues that presently being raised are during the midterm review of awards next year. Nonetheless, there is a little history to the matter. On 4 December 2009 the full bench decided the Children's Services Award 2010, and in its decisions the full bench stated at paragraph 70, "We have taken into account the views of the parties with respect to the transitional provisions. This has resulted in some modification of the model clauses."

PN25

Your Honour, I'll provide you with a copy of the submissions filed on behalf of the Australian Child Care Centres Association and the Australian Community Services Employers' Association who represent the very great majority of employers in the industry, and I also provide you a copy of the submissions on the same point that were filed by the union a couple of days before the employer's submissions. The first document I've given you - well, perhaps I'll take it chronologically. I'll refer to the union's document. The union at that time was known as LHMU. You will see on the back of the third page of the document I've provided you at clause A.3.7 the union's submission is that there should be a clause in the terms that were eventually included in the award. I've put a highlighted mark next to that.

PN26

Those are the same terms as were eventually included in the award. The employer's document which had been filed I think on 26 October, and as I recall the union's document was filed on 22 October. The employer's submission includes a table, and on page 2 of the document, about halfway down the page, I've highlighted the indication in relation to the transitional provisions and I quote the intention - well, I quote, "Preservation of certain rates in Tasmania and Western Australia and all classifications (including authorised supervisor allowance) in New South Wales until 1 July 2014." Those are the only two submissions that we've filed on this particular point in that matter.

PN27

Nonetheless, despite paragraph 70 of the full bench's decision being that they've taken into account the views of the parties in respect to the transitional provisions, the transitional provisions that occurred in the award made on that day included only one change from the model provisions, and that change was the insertion of health screen and police clearance checks in Western Australia. Now, the industry agreement reached by the major industrial parties wasn't that, it was as is reflected in the documents I've handed up, the submissions of the union and of the employer body. If we take it back a little further than that, the submission of the employer body on 16 October included that discussions were occurring.

PN28

That's not the document I've given you, your Honour. There was a previous submission, and that indicated the discussions were occurring and that an agreed draft was likely to be provided. I've provided the submissions of the LHMU which I can now confirm were 20 October and they set out the draft of the agreed package. The draft award filed by the employer body on 22 October in a marked up form indicated - reflected the industry agreement including agreed transitional provisions. The part 7 transitional provisions of that draft award included, but mistakenly omitted to indicate that the agreed position around transitional preservation of the higher minimum rates in Tasmania, Western Australia and New South Wales, and then there was a letter from the employer body on - well, that's the letter that I've handed up, the letter dated 26 October that confirms what the intention is.

PN29

Now, at the public consultations in the matter on 27 October 2009, both the union and the employer body commended the agreed industry position. The agreed position in respect to modification of transitional provisions was and is for the existing - what minimum wages to be preserved for the full five year period.

PN30

THE VICE PRESIDENT: It could be said that preservation is different to what's in the award, which is continuation of the - - -

PN31

MR VANCE: Well, in fact I'm not sure that Mr Morphett has properly described that. If I refer to his table you'll see - I'm referring to table A. If you see the column Transitional Amount, which is one, two, three large columns from the left, it's in green, there are some figures there that are positive and some figures that are negative. Presumably that means that some rates were - some modern award rates were greater than the previous instrument and some were lower. However, the provision of A.3.7 falls within that - within A.3 that deals only with transitional provisions where the minimum wages are higher. It doesn't - it isn't replicated in A.2 which deals with circumstances where minimum wages are lower. So it's not the case that it's preserving everything just as it was, it is effectively saving those rates and allowing them to be supplemented by the adjustments in the minimum wage.

PN32

THE VICE PRESIDENT: Well, that's the point. As I read the employer submission, it could be construed as an agreement to preserve the rates but without those rates being supplement by movements in wages in the interim period.

PN33

MR VANCE: Well, your Honour, the decision that was made on 4 December, and I will provide a copy of that decision.

PN34

THE VICE PRESIDENT: I've got it.

PN35

MR VANCE: You've got a copy?

PN36

THE VICE PRESIDENT: Yes.

PN37

MR VANCE: If I can take your Honour to paragraphs 69 and to 70 which occur on page 14. There's an indication there that - well, I quote, "Following submissions and consultations on the exposure draft, changes have been made to this award to reflect the consensus of the major parties on span of hours, minimum shift lengths, overtime for part-time employees and junior rates." It goes on to talk about an error and it's been corrected. That's not relevant to these particular matters. Then at paragraph 20, "We've taken into account the views of the parties with respect to the transitional provisions. This has resulted in some modification of the model clause." It goes on to talk about some other material that's not particularly relevant here.

PN38

That decision was taken by the full bench in the light of the submissions that have been made to the parties, and specifically by the union that the particular clause that's shown at the - - -

PN39

THE VICE PRESIDENT: The one you referred to before?

PN40

MR VANCE: Yes, the union's submissions that were made I think on 22 or 20 October at A.3.7. A.3.7(ii), "Apply any increase in minimum wages in this award resulting from an annual wage review." I think it's pretty clear that the intention was to save any existing rates where they were greater than those in the modern award and to continue to apply the increase. Now, I think I noted - - -

PN41

THE VICE PRESIDENT: That's clearly what the union has put. The employer's submission is subsequent to that, is it not?

PN42

MR VANCE: The employer filed their document on - the document I've handed up was on 26 October, and I think I've referred that there was also some public consultations on 27 October. Both the union and the employer body commended the agreed industry position. I don't think there was any question in people's minds, and it is the case, your Honour, that the very great majority of employers in this industry, and there are many thousands from child care centres within New South Wales, have agreed that the rates are as the union interprets the award and as agreed to by the employer bodies with the exception of Mr Morphett. Mr Morphett had drawn this matter to my attention some time ago.

PN43

THE VICE PRESIDENT: Where are the other employers now? Where are the other employers affected by this application?

PN44

MR VANCE: Well, indeed, your Honour. I'm surprised that they're not here and I'm - well, I'm thinking if Fair Work Australia were minded to grant the application, that it would be a proper course of action to allow a further opportunity for those employers to make their position known. Nonetheless - - -

PN45

THE VICE PRESIDENT: I assume that they would be subscribers to the award that binds them and they go notice of a hearing as all subscribers have?

PN46

MR VANCE: Yes.

PN47

THE VICE PRESIDENT: Or their representatives have or something's come to their knowledge. But it's a little bit curious that they haven't sought to be involved.

PN48

MR VANCE: Indeed. Your Honour, the - as I indicated earlier, the decision that was taken to include the transitional provisions, the award produced from that initially did not include any - it did not include the relevant A.3.7 material. However, during the intervening period the union had been preparing an application. I understand there was some discussion between the union's national office and staff of commission members, but before that application could be made the commission, of its own volition, issued a correction order. Have you a copy of the 11 December 2009 correction order?

PN49

THE VICE PRESIDENT: I'll just have a look.

PN50

MR VANCE: So that order makes it fairly - well, it introduces A.3.7 in the terms that were agreed to by the parties and it renumbers an existing clause. It seems to the union that the matter has been considered at least on two occasions by the full bench: once when the award was originally made and the decision of 4 December indicates that the views of the parties on transitional arrangements have been picked up, and secondly in preparing and issuing the correction order when it became apparent that the document that originally had been made did not reflect what was intended. We think this matter has been considered on several occasion. Mr Morphett has had an opportunity to put a position.

PN51

A very major employer body has supported that change to the award. It is not for the court now to upset the decision that was taken on our view on two occasions by the full bench. The appropriate place for it to be raised is during the midterm award review, if the tribunal pleases.

PN52

THE VICE PRESIDENT: Thank you, Mr Vance. Mr Morphett?

PN53

MR MORPHETT: Thank you, Vice President. There's only - I only mean to (indistinct) some brief responses. The - we still end up - I mean, I can't speak for the other employer groups. We certainly have - one of them has appeared here today. I can't speak for the others. I wasn't involved in the original modern award process, so I - at that stage. So I - - -

PN54

THE VICE PRESIDENT: Have there not been any discussions with other representatives of child care?

PN55

MR MORPHETT: I have. I have with other representative groups, in particular Mr Malone from Livingstone's. I spoke to him at some length about the decision that had been made, and certainly Mr Malone and I know each other from (indistinct) but the - forever ago. Certainly his view was that it was a consent position that was taken, certainly from his point of view. He didn't give me any indication that he'd actually calculated out what the impact would be before they actually consented to what the union was seeking at the time. Equally we still end up with the same position that we were before which is that rates of pay that were low under the modern award rates are increasing, so we're getting one side of the transitional process but we still have this quarantining around people who have a high rate of pay.

PN56

When we're looking at - when we're in a national system heading to a modern award that will - and the industry is very grateful for not having to deal with 27 awards any more in child care and only having one, but if we're going to go to that process it just doesn't - there seems to be a lack of logic in still maintaining this - I can't come up with a better word, but this quarantining around the New South Wales rates, particularly when if you go back through history the New South Wales award doesn't appear to have gone through the same sort of scrutiny that any of the other awards went through to determine work value, flowing on from the 2004, 2006 with ACT and Victoria, then through the South Australian State Commission where virtually the existing provisions were applied. Sorry, the decision of the federal commission was applied in that state.

PN57

This is before we come to the modern awards to the extent now where if you do a comparison there are minor differences in terms of the rates of pay. There were some different classifications because of the nuances that applied in South Australia. The same outcome from that Fair Work case was applied in Western Australia, Tasmania, Queensland. Queensland took it on as an interim award - interim rate straight away. Everywhere except New South Wales. Now, I'm not an authority on the old New South Wales commission as it operated or how it dealt with work value, but it doesn't appear that that's been a process that's been gone through.

PN58

So then we end up with these rates of pay which have evolved over time, admittedly, and mostly, it appears through consent of the parties. They have no correlation with what we now have as the modern award rates or how they grew from the existing work value cases that were run before. So this is why they call it an anomaly. It's - they just stand out there and the impact on the sector is twofold because you not only have employers, particularly those employers who work across borders struggling with the differential in rates and understanding why there has to be differential, why Queensland rates are transitioning, state rates are transitioning but New South Wales aren't.

PN59

You also have this looming spectre of 2014, and we get to this point when we're allowed to reduce those rates of pay, what's going to happen then? Because in some of the classifications, they're three-odd thousand dollars more than they will be under the modern award. So you could end up with - you know, not getting a pay rise for two years.

PN60

THE VICE PRESIDENT: That would appear to be the biggest problem that you've highlighted, is it not? The argument that the intention seems to be to bring rates to common rates in 2014 whereas that would not be achieved if those provisions were made (indistinct)

PN61

MR MORPHETT: Yes, and that's why I guess I put considerable thought into how you could then resolve that, because obviously identifying the problem is only one issue. How do you resolve it? so what I propose certainly for consideration, the intention of a change would be to reinstate the transitional rates for new employees and in existing employees who have been engaged for, you know, obviously during this period of time through no fault of their own and have ended up on a higher rate, and those rates need to be fenced off until the award catches up. That seemed to be the only fair way to approach it, and that way we would at least get a majority of the effect of the transition dealt with by 2014.

PN62

I did try to consider whether there was any other way to do it, and even accelerating the merge, but - where you will end up with, in my humble view, too many applications for paid wage - pay rate orders because the - it accelerates it down too quickly. That's not fair either.

PN63

THE VICE PRESIDENT: Mr Vance has raised the issue as to whether there's a proper basis under the Act for the variation at this point in time. What section do you rely on?

PN64

MR MORPHETT: I had only put this as an application to vary the award. I hadn't put a lot thought to that. I could certainly make some submissions but not at this time. I take Mr Vance's point, however, that it is a matter that could be dealt with next year, but - - -

PN65

THE VICE PRESIDENT: There seems to be a broader ability to review these sorts of things in a review than there is now where the jurisdiction to vary the award is limited.

PN66

MR MORPHETT: I guess the concern is that we've already got employers and employees who have gone through a 12 month process and on, and by the time we get to a review then we're already halfway through. So then we may well have to, and it may certainly be the outcome that we have to look at in terms of transition for this award, moving out the 2014 cut-off because otherwise it would - if we keep aiming for that point it will end up accelerating too quickly.

PN67

THE VICE PRESIDENT: If this matter was considered next year as part of a review of the award then the only real change would be the national wage increase on the existing rates, wouldn't it?

PN68

MR MORPHETT: Yes, it would, but you've got three years of national wage increase with no transition so then you're only jamming down to two transition points after that, and on a fear that might, with some of that classifications that have got a long way to adjust, that that might adjust them too quickly. You see, there is other knock on effects as well with - and part of this is the - with the advent of the national quality framework and with discussions with another organisation called Centre Support that provides a lot of qualification support to child care centres, we've estimated that the sector will need to be finding somewhere between now and 2014 another 35,000 certificate III and diploma child care workers.

PN69

They'll need to get those people qualified. Now, those bodies are probably already in the sector, but to get them up to this level of training is likely to be a hard task. On top of that we've got this uncertainty over rates of pay, for example, that the certificate III rates of pay in New South Wales as they stand now and through to whatever time we will have to change them, there is three increment points and there's no change in the rate of pay. So if you stay for three years you still just keep getting the same rate of pay and there's no movement. There can't be movement because - the reason mechanically why it happened is that the top of the child care worker classification where a person studies a certificate III and achieves the qualification, that's where they stop.

PN70

They didn't have incremental progression under the New South Wales award from that point whereas under the federal award - sorry, under the modern award they have 3.1, 3.2, 3.3. They've got progression. Because they don't have that, then the comparative rate stays the same subsequently and also that rate is higher than the modern award rate on commencement. So subsequently there's no change in that rate, and that creates difficulties as well. So it's - there's a cacophony of problems that, having looked through - all of the submissions that Mr Vance has put forward, I've got no issues to raise with any of them, I just don't think that at - at some point in time, I don't think actually somebody sat down and ran the calculator over it, quite frankly. So we've ended up with this evolving problem which is just going to keep extending. I was hopeful that this was a matter that we could deal with before next year.

PN71

THE VICE PRESIDENT: Well, there's - you've obviously got opposition to the application to deal with and a point raised as to what's the jurisdictional basis for dealing with it now. You've indicated you're not able to deal with that today. Normally there's not more than bite at the cherry. In a matter like this if there's not a demonstrated clear jurisdictional base for the application at the outset, it can't succeed. But I just wonder here whether it is appropriate to - that there be further consultation with a view to endeavouring to address the issue as far as possible by agreement. I can see the point that is made in the application, that it - this provision continues to operate in a way that it applies and, to use your terminology, with the benefit of a calculator there will be a point reached in 2014 where the rates of pay for New South Wales will be at variance, significant variance in some cases to rates of pay throughout the country, and then there is an issue as to what happens on that occasion.

PN72

I would think that that's an issue for everyone in the industry rather than only some. I think you've been genuine in raising the issue and looking for a fair means of dealing with the situation. There are a couple of difficulties. The union has indicated the consent position that was put to the tribunal in 2009 which apparently continues because the other employers are not here to resile from their position in any way, I take it from that that they do not support the application at least, otherwise they would be here. You've got an issue as to whether there's a jurisdictional basis to deal with the matter now. I could give you an opportunity to deal with that (indistinct) item about those sort of matters (indistinct) I tend to think the most productive use of everyone's time might be to try to address the matter collaboratively with everyone concerned rather than only some.

PN73

So if its true that the major issue arises in 2014, albeit I note your argument that the earlier it starts to be addressed the easier it is to do so, I really think the gap that appears is the absence of every effort being made to adopt a joint approach to deal with the issue. I just wonder whether in the circumstances, although it's not your preferred position, that - to have the opportunity of further discussions with the union and other employer representatives. It may be that if there's an agreed position reached, some changes could be made prior to the next minimum wage adjustment. It's not inconceivable, although I think we're all expecting next year to be pretty busy with a review of many provisions of all of the modern awards and for that process to take most of the year. What do you say in response to those comments?

PN74

MR MORPHETT: Yes, Vice President, the - that would clearly be the best way forward would be to try and resolve these things with some discussion and perhaps come back with a further agreed position. I'm wondering if there is some assistance that the commission may even be able to provide in not a formal but in an informal setting to assist the parties to discuss the issue.

PN75

THE VICE PRESIDENT: Yes, I think that is possible. What might be appropriate is to adjourn generally, perhaps with a report back date, it might even be by telephone to avoid necessity for attending, but if there is a desire, I think it probably would need to be by agreement to participate in conferences on the matter chaired by a member of the commission and - you were apparently not involved in the award modernisation process, but different members of the commission had responsibility for the consultation process with the parties. I was not involved with this award, although I was part of the full bench that made the variations. Maybe that we involve the member that was involved in the award chairing a conference of the parties in relation to this issue is something that might be agreeable to the parties.

PN76

I think what you would need to do is consult with the union and the other representatives of employers and consider whether that can be agreed. I would be inclined the adjourn the matter in all of the circumstances to allow you to consider those matters and to determine how you wish to take the matter further. Mr Vance, do you want to comment on anything that has been raised?

PN77

MR VANCE: Only one particular matter, your Honour. I'm not sure it’s a moot point, but I would like to put on the record that Mr Morphett had not been aware of - is not aware of the work value test case that was run in the New South Wales jurisdiction with a decision in early March of 2006. That is the reason that the New South Wales rates are somewhat higher than those in other states. Those rates didn't come from nowhere, so I simply highlight that and indicate that of course the union is happy to consult with the stakeholders in the industry about it. You indicated you might set a report back date. If that were to be the case, we'd suggest that December would be appropriate because there are a lot of stakeholders and there'd be quite a deal of consultation necessary. Alternately the commission and the tribunal may just hold the file on application and relist the matter.

PN78

THE VICE PRESIDENT: Yes. Thank you for that. If there is a fair bit of consultation it might be better simply to allow the matter to be relisted on request of any party. Mr Morphett, I'd be inclined to follow that course. We'll adjourn the matter now to allow you to consider submissions to be made and the comments that I've made in relation to the application. There are a variety of options there to your application to proceed as you see fit. Perhaps you can communicate with my chambers as to the course you wish to follow when you're in a position to indicate that.

PN79

MR MORPHETT: Thank you, Vice President.

PN80

THE VICE PRESIDENT: Thank you for that. We'll adjourn this matter on that basis.

<ADJOURNED INDEFINITELY [10.48AM]